ONTARIO COURT OF JUSTICE

DATE: 2025-12-05

NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

--- AND ---

DANIEL TAYLOR

JUDGMENT

Evidence and Submissions Heard: November, 19,21, 2025.

Delivered: December 5, 2025

Mr. Robert DeChellis — counsel for the Crown

Mr. Daniel Taylor — self-represented defendant

KENKEL J.:

Introduction

[1] A person working at a gas station called 911 to report that a driver of a red Mercedes was unsteady on his feet and was possibly impaired. Officers intercepted the vehicle when it arrived at the owner's registered address. Constable Wilson spoke with the driver Mr. Taylor. The officer's observations led him to make an Approved Screening Device (ASD) demand. The failure of that test led to the arrest of Mr. Taylor and further testing with an Approved Instrument (AI) at the station. Those tests registered truncated readings of 140 and 130mgs of alcohol per 100ml of blood. Mr Taylor was charged with the offence known as "80+" – having a blood alcohol concentration (BAC) in excess of the legal limit (80mg/100ml) within two hours of ceasing operation of a conveyance s 320.14(1)(b).

[2] Prior to arraignment, the Crown alerted the court that the evidence would show one Charter breach in relation to the approved instrument demand. That demand was not made "as soon as practicable" as required by s 320.28(1). The Crown also noted other aspects of the evidence where the accused might wish to allege a s 10(b) breach. Mr. Taylor added two further Charter issues. Both parties were content to proceed without formal notice and response. The trial evidence and the submissions of both parties identify the following issues for decision:

• Charter s 9 – Arbitrary detention – Was the stopping of the accused on the roadway near his residence arbitrary?
• Charter s 8 – ASD Test – Did the officer have a reasonable suspicion for the ASD demand? Was the demand timely?
• Charter s 10 – Did Mr. Taylor have the right to advice from counsel from the moment he was stopped? Was Mr. Taylor's right to speak to counsel of choice breached?
• Charter s 24(2) – The approved instrument demand was not made "as soon as practicable" as required by s 320.28(1). Should the breath test evidence be excluded as a remedy for that and any other breach?
• 80+ - If the breath test evidence is admitted, does cell video evidence of possible vomiting prior to two breath tests leave a doubt about the accuracy of the test results?
• 80+ - Do tests taken more than two hours after ceasing operation provide evidence of Mr. Taylor's BAC during that time period?

Charter s 9 – Arbitrary Detention

[3] Mr. Taylor submits that the fact the police blocked access to his driveway to stop his car was arbitrary as they had not attended the gas station or conducted their own investigation.

[4] Driving is a regulated activity. Police have the authority under the provincial Highway Traffic Act RSO 1990 c H8 s 48 to stop drivers to investigate driver sobriety. They also have that power at common law – R v Orbanski, 2005 SCC 37. They don't need a reason to stop drivers for such an investigation, but they had one here. The detailed 911 call provided a reasonable basis for the stop.

[5] There was no s 9 breach.

Charter s 8 – ASD Test

[6] I accept that the demand was made while P.C. Wilson was at the driver's window although that interaction was not captured on the In-Car-Camera (ICC) audio. When the officer later prepared his notes, he recorded the demand but did not put down the precise time as he couldn't recall it and he didn't want to guess. He agreed at trial that he made the ASD demand before Mr. Taylor exited the car when the odour of alcohol became apparent.

[7] Constable Wilson had the ASD with him in his vehicle. He did not need a reasonable suspicion to demand that Mr. Taylor comply with an ASD test (s 320.27(2)), but the evidence he had to that point would also meet that criteria. His observations of slurring of speech and fumbling with a document combined with the information he had received from the 911 call also provided a reasonable basis for a suspicion-based demand under s 320.27(1).

[8] The demand was made at the driver's window within 2 minutes of the stop. The test sequence started 5 minutes later. It took time for the officer to retrieve the ASD from his vehicle. The test was also delayed as the accused had called his parents who came outside and intervened in the investigation. The ICC video showed Mr. Taylor and his parents argued with another officer at 3:00 a.m. Eventually Mr. Taylor came back to the front of the police vehicle where the ASD was waiting on the hood.

[9] It took 5 minutes for Mr. Taylor to provide a suitable sample. The officer demonstrated the device twice and each time the video showed it took 3 seconds for Constable Wilson to provide a sufficient sample. Mr. Taylor at first provided no air into the device resulting in no tone as explained by the officer. Then there were stop and start samples until he provided a suitable sample on the 8th attempt.

[10] The Crown has proved that the screening device demand was lawful. There is nothing about the administration of the test that was unreasonable or unfair. There is no evidence of a s 8 breach in relation to the ASD test.

Charter s 8 – The Approved Instrument Demand

[11] P.C. Wilson explained that the ASD Fail result showed that the accused's BAC was 100mg/100ml or higher and that provided grounds for an Approved Instrument demand.

[12] Constable Wilson did not read the Approved Instrument demand at the roadside. Reading anything was difficult. During the right to counsel advice Mr. Taylor interrupted constantly shouting "HELLOOOOO" and other words in a loud and argumentative voice. He pretended he could not hear the officer, even when the officer opened the back door of the car and started to read the advice again. Mr. Taylor obstructed the officer's effort to provide that advice. The extended sequence appears to have distracted the officer from the next step which would have been the demand. The Crown concedes that the officer was still required to at least try to read the AI demand.

[13] There was a demand made at the station, but it came after a long wait for a lawyer to return a call. While the Crown has proved the demand was based on reasonable grounds, the Crown concedes that the demand by the breath technician was not made "as soon as practicable".

[14] The failure to make the approved instrument demand "as soon as practicable" as required by s 320.28(1)(a) results in a breach of s 8 of the Charter.

Charter s 10 – Right to Counsel

[15] Mr. Taylor submitted that he should have been informed of his right to speak with a lawyer from the moment he was detained. He further submitted his right to speak with a lawyer of his choice was breached.

[16] Mr. Taylor is right that section 10 of the Charter is engaged on arrest or detention. However, there is a long-standing exception for the roadside investigation of licensed drivers to determine their sobriety. Those investigations including ASD testing are brief and incompatible with a delay to consult with counsel. The limitation on the right to counsel in this context has been held to be reasonable – R v Orbanski, 2005 SCC 37 at para 52.

[17] P.C. Wilson attempted to provide right to counsel advice immediately upon arrest, but Mr. Taylor was very argumentative and loudly resisted that effort. Constable Wilson patiently continued his effort. Eventually Mr. Taylor said that he wanted to speak with a lawyer named "Mystensky". During booking at the station Mr. Taylor was still angry and argumentative, but the officers were able to clarify that the lawyer Mr. Taylor wished to speak with was actually Boris Bytensky, a well-known criminal defence lawyer in Toronto.

[18] Constable Wilson called Mr. Bytensky's office at 3:57 a.m. That number referred the officer to an emergency line. He called the emergency line and spoke with an operator who advised she would page Mr. Bytensky. By 4:30 a.m. Mr. Bytensky had not called back. There was no call from his office that morning.

[19] Constable Wilson spoke with Mr. Taylor and said it was early Sunday morning and the chance of the lawyer calling back "was not very promising". He asked Mr. Taylor if he wished to call another lawyer or call duty counsel. Mr. Taylor continued to ask for Mr. Bytensky. Mr. Taylor continued to be obstructive during this conversation, repeatedly saying he didn't understand the simple question posed by the officer. P.C. Wilson continued to be patient, repeating the two further options six times. Mr. Taylor refused to make another choice so eventually at 5:00 a.m. he was handed over to the Qualified Technician.

[20] Mr. Taylor told the Qualified Technician P.C. Poole that he wished to speak with a lawyer named Jenna Imbrogno. P.C. Poole looked up that name on the Ontario Law Society website and did not find a registered lawyer with that name. Mr. Taylor insisted she was a lawyer, and he provided a number. The officer called that number, but nobody picked up. P.C. Poole didn't recall if there was a voicemail option, but he always leaves a message where that is possible. That's likely here given there was another wait. There was no return call. Mr. Taylor did not suggest another lawyer, nor did he ask to speak to duty counsel. At 5:30 a.m. he was taken to the breath test room and tests were conducted.

[21] Mr. Taylor had a right to speak with a lawyer. When it became plain that his lawyer of choice was not available, he needed to act with diligence and consider other options. The officer was not wrong to call the second name as that person's status could have been clarified at the time of the call if they were available. However, when that person did not call back Mr. Taylor needed to consider the other options they had discussed – the immediate availability of duty counsel or speaking with another lawyer. He did not exercise his right with reasonable diligence.

[22] No further warning in relation to the right to speak with counsel was required as the police had called counsel of choice and a second possible lawyer. They had also suggested two other options. They had been very patient at the roadside and at the station with Mr. Taylor's aggressive obstruction of their efforts to advise and assist him with his right to legal advice. The officers reasonably waited an hour and a half, but there was never a return call from either person. Mr. Taylor wanted to speak only to the two people he named, and he refused multiple offers to call duty counsel or another lawyer. The officers were entitled to proceed with the testing. The evidence is plain that had he changed his mind at any point and requested duty counsel or another lawyer the officers would have immediately placed that call.

[23] There was no s 10(b) breach.

Section 24(2)

[24] The section 8 breach is a failure to comply with the time limit for the demand imposed by s 320.28(1) – "as soon as practicable".

[25] In this case the breach wasn't serious given that it arose in large part from the conduct of the accused. Constable Wilson was professional and patient, but Mr. Taylor would not let him complete the right to counsel advice. The time spent trying to provide that advice and the difficulties with Mr. Taylor plainly distracted the officer from continuing with the breath demand. The officer had a duty to make or attempt to make a timely demand, but I find his failure to do so here was the product of unusual circumstances and not of any disregard for legal or Charter standards

[26] The failure to make a timely demand had no apparent impact on the Charter protected interests of Mr. Taylor. He would have shouted down any reading of a demand. He was argumentative on booking as well, continuing to shout down any advice and instructions given by both officers. The delay in the Qualified Technician's demand at the station after receiving grounds was due to an extended wait for counsel(s) of choice to call back. Mr. Taylor was told during the right to counsel conversations that breath testing was the next step.

[27] The ASD test fail result provided reasonable grounds for the approved instrument demand. The failure to read that demand in a timely way was a breach, but one which was explained by the unusual circumstances at the roadside and at booking. It would bring the administration of justice into disrepute to exclude reliable breath test evidence to remedy a technical breach caused in large part by the accused's own conduct.

80+ - Mouth Alcohol

[28] Mr. Taylor submits that the cell video evidence shows he vomited before each of the approved instrument tests. He did not bring that to the attention of the breath technician. The qualified technician agreed in cross-examination that mouth alcohol arising from vomiting or other source can affect the accuracy of the readings. The defendant submits that there must be a reasonable doubt about the reliability of the test results.

[29] There are two issues with this submission, a factual one and a legal one. The factual issue is that the evidence at trial did not support the submission. The legal issue is that the Criminal Code no longer permits this type of evidence being considered as "evidence to the contrary" or "evidence tending to show" that could leave a reasonable doubt about the accuracy of the test results.

[30] The cell video did not support Mr. Taylor's submission that he vomited before the first test. He certainly was drinking water at the sink, but the Qualified Technician testified that wouldn't interfere with the test. It's possible he vomited prior to providing the second sample, but the cell toilet area was blacked out on the video for privacy. If he did vomit then, P.C. Poole's evidence showed that it would not have affected the tests as it was 19 minutes before the second test. The waiting period for mouth alcohol is 15 minutes which is also the time between tests required by the Criminal Code for the same reason. Both samples were found by the Qualified Technician to be suitable using four factors which did not show the presence of mouth alcohol. The two test results were in good agreement, confirming that mouth alcohol did not skew the result of the second test.

[31] Prior to 2018 it was open to a defendant to call "evidence tending to show" that the approved instrument was malfunctioning or operated improperly and that his breath test results would not have otherwise exceeded that statutory limit. Prior to 2008 the defendant could call "evidence to the contrary" to raise a doubt about the accuracy of the readings.

[32] In 2018 Parliament revised the drinking and driving provisions of the Criminal Code. Parliament recognized that the detailed breath test protocol set out by the Alcohol Test Committee ensured the accuracy of the breath test results in every case. That protocol was already part of the software of every instrument approved by the Test Committee, but Parliament codified the essential steps of the breath test procedure in s 320.31. That section set out the required test steps including two independent calibration checks against a certified, known standard during the test sequence, a 15-minute wait between two tests to guard against mouth alcohol, and a further requirement that the results of the two tests be in good agreement as a further way to ensure that there was no mouth alcohol or other issue which affected the results. Where the Crown proves that the tests followed those requirements, that section provides that the test results are conclusive proof of the person's BAC at the time the tests were taken. The term "conclusive proof" specifically disengages the provision of the Interpretation Act, RSC 1985, c I-21 s 25(1) that provides for "evidence to the contrary".

[33] A challenge to the accuracy of the approved instrument test results must now focus on one of the criteria set out in s 320.31(1). In this case the Crown has proved that each condition required by that section has been met:

• Samples were received into an approved instrument (AI);
• the AI was operated by a qualified technician;
• before each sample was taken the qualified technician conducted a system blank test with a result not more than 10mgs/100ml and a system calibration check the result of which was within 10% of the target value of an alcohol standard certified by an analyst;
• there was an interval of at least 15 minutes between tests; and
• the results of the analyses, rounded down to the nearest 10mg, did not differ by more than 20mg of alcohol per 100ml of blood.

[34] Section 320.31 therefore deems the test results in this case "conclusive proof" of Mr. Taylor's blood alcohol concentration at the time of testing. The questions Mr. Taylor raised in relation to the cell videos were not supported by the evidence and they could not otherwise leave a doubt about the readings as a matter of law.

80+ – Tests Outside 2 Hours

[35] The breath tests were taken more than two hours after Mr. Taylor stopped driving. In the absence of expert evidence, Mr Taylor questions how the later test results can be applied to the two-hour window in which the offence is alleged to have occurred?

[36] It's common experience that the human body eliminates alcohol over time. Forensic toxicologists routinely testify that there is a scientific consensus that alcohol is unusual in that all persons eliminate that drug at a standard rate within a narrow range. That property allows toxicologists to extrapolate backwards in time from known blood alcohol concentrations (BAC) to reliably state a person's BAC at a prior time. Mr. Taylor is right that generally such evidence would require expert testimony.

[37] In 2018 Parliament enacted section 320.31(4) of the Criminal Code which eliminated the need to call a toxicologist for routine "read back" evidence. That section provides that where the samples of breath were taken more than two hours after the person ceased to operate the conveyance, the person's blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in the tests, plus an additional 5mg/100ml for every interval of 30 minutes in excess of those two hours.

[38] Parliament applied the standard range of alcohol elimination and took a conservative value most favourable to the accused to relate breath test results back to the relevant time period.

[39] Where samples of breath were taken more than two hours after the person ceased to operate the conveyance, the person's blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in the tests, plus an additional 5mg/100ml for every interval of 30 minutes in excess of those two hours.

[40] Because Mr. Taylor was metabolizing and eliminating alcohol from the time he was stopped by police to the time of his approved instrument tests, his blood alcohol concentration during the two hours after he was stopped would have been higher than the later breath test readings which were rounded down to 130mgs. The stop was shortly after 2:55 a.m. The second test was completed at 6:07 a.m. For every half hour after 4:55 a.m. section 320.31(4) adds another 5mgs to the accused's BAC. There are two half hour periods after 4:55 a.m. to the end of the second test so the Crown has proved that Mr. Taylor's blood alcohol concentration within two hours of ceasing to operate his conveyance was 130mgs + 10 mgs = 140mgs/100ml.

Conclusion

[41] I found that the approved instrument demand was not made as soon as practicable contrary to s 320.28(1) resulting in a breach of Mr. Taylor's s 8 Charter right to be free from searches unless authorized by law and conducted in accordance with that law. I have found that the breach could not reasonably result in exclusion of the breath test evidence under s 24(2) or any other remedy. The remaining Charter applications were dismissed.

[42] Considering the evidence as a whole, I find the Crown has proved the charge alleged beyond a reasonable doubt. There will be a finding of guilt.

Delivered: December 5, 2025.

Justice Joseph F. Kenkel